Publisher's Corner: Selecting a public defender

By By RICHARD SHAWEmery County Progress publisher

What exactly should the policy be for selecting a public defender?

Patsy Stoddard, the editor of the Emery County Progress wrote an article on Nov. 15 concerning the selection of public defense attorneys to work cases in Emery County. Local attorneys that have provided the service for years were selected, and as a conflict attorney (one who takes cases where the main public defenders might have a conflict of interest) another Emery county lawyer was selected.

The idea of bidding out the public defenders job is a good one. It gives lawyers in the area a chance to compete in the process and may turn up some real savings for the county involved. But I have some questions, and it isn't just about Emery County's process, although some of what happened there brings to mind problems that have arisen across the state.

Most of the public know little about the law unless they have had to deal with it. The general public's information about criminal courts generally have to do with watching one of the many "Law and Order" shows on television that show the prosecutors and the police side or something like "Harry's Law" where being a public defender for those that can't afford high priced lawyers is labeled almost as a crusade. Television news also adds some knowledge. But few understand the process of public defense well, how it is paid for or what part it plays in a rural county's process.

Imagine yourself with little or no assets, arrested for a crime which you may or may not have done. Then take the state average of about $400 that is spent by a county to defend you with a public defender. Does that seem adequate to protect your freedom?

Just ask yourself, how long does $400 last when you hire an attorney, even an inexpensive one for any kind of matter? The answer is not very long.

So one of the issues in dealing with hiring private attorneys to be public defenders is cost. County attorneys have budgets as all county managers do. Their budget must include the cost of the prosecutors as well as the cost of public defenders. They want the best deal for the money they have. That's understandable and commendable from a taxpayers point of view.

But what price should we put on a person's guilt or innocence? What price should we put on one person's freedom or their reputation in the community if they do not have the money to muster for their own defense attorney?

In Utah, the counties pay the cost of public defense, plain and simple. There are no real guidelines as to how a county should select public defenders. Emery County Attorney David Blackburn mentioned in his remarks to the county commission during the hearings on hiring public defenders that the American Civil Liberties Union has threatened to sue counties who hire attorneys with little criminal defense experience. During one of the county commission meetings he said he had met with them last year and asked them not to sue the county because he would work on a good way to select their public defenders who had experience and rule out those who don't. Those would seemingly be the young attorneys. But the ACLU has also alluded to the fact that they are also not too happy about hiring those who are not criminal attorneys, such as someone with a corporate law background or family law being hired.

So the fact is where the state fails to spell things out, someone else, through the vehicle of the courts using lawsuits or the threat of lawsuits, will. This is the case in rural counties and their use of private attorneys as public defenders.

Many in the public disparage the American Civil Liberties Union for some of the cases they have taken on over the years. The organization was formed to protect American civil rights, and sometimes, no matter who you are, and depending on your opinion on things, they seem to end up on the wrong side of the argument. They are an organization that likes to stick their noses in (and poke their fingers into) areas in our government that many will not challenge nor question.

From my point of view in no way is that a bad thing. Questioning government practices and how it is run is one of the ways we have to get things that are wrong, corrected.

In August the ACLU released a report called "Failing Gideon" that basically said that the public defender system, particularly in rural Utah was not serving the public the way it should. It was a condemnation of the system that is used by most counties to not only select attorneys to be public defenders, but also how the system works after an attorney is hired.

Now it's easy to look past this kind of report. Many consider the ACLU a crackpot organization and many more would also say "who cares" if they have never been poor and in trouble with the law. But one needs to remember the adage that if one person's rights are neglected, all our our rights are lessened.

Here are just a couple of the points the report makes and how I seen them as real problems in our rural counties.

*County attorneys in the state routinely help select the public defenders that they face in court after they are hired. They also often negotiate the terms of the public defenders contract. Problem: isn't this a conflict of interest? The county attorney has a budget he must stay within, and he is going to work toward doing that because he must. Is he going to pick the attorney that will represent the defendents the best, or the ones that will make deals more often, because that saves money? The report says that most counties spend three-five times as much on the prosecution as they do on public defense. That is only for the attorneys working on the case. The prosecution not only has more money to work with for lawyers but they also have the use of other services that the defending attorney would have to pay for such as investigators, police and other auxiliary services.

*There are no systems in place to track caseloads or the quality of representation that clients receive from the public defenders. Problem: admittedly, in this business, the public defenders often make enemies of their own clients if they don't get them off. But somehow, some way, I think the effectiveness of attorneys who are paid to defend the less fortunate in our society ought to get some kind of report card from the people they serve. How do we not know that they only meet with their client five minutes before arraignment and court? How do we know if they are doing what their clients really want? We often dismiss cries from defendants about poor representation as sour grapes, but maybe we shouldn't.

There is a lot more to the report (it's 95 pages long) and these two points address only a little of what the ACLU points out. The report can be found at acluutah.org if you want to read it for yourself.

I, in no way want to disparage who was selected to be public defenders in Emery County. That is not what this is about. Both the firms selected have handled public defense in the county over the years and have done the job they were asked to do.

I recognize that in some ways Emery and many other rural counties find themselves between a rock and a hard spot on this. But the point of this piece is about the system and how it is operated. The county admitted they had not bid out the job of public defender for years. In fact, apparently, no one can remember the last time it was done.

That in itself is a question and a problem, because a protocol to do so is not really established. Bidding out legal services is very different from getting a bid on a county vehicle or on a construction project. Counties do not have to follow the same guidelines on low bid. As Blackwell pointed out in the meeting they do not follow those kinds of bidding procedures for professional services.

In this case the county attorney felt the bids that were submitted were too high, so he negotiated to get them lowered. That is a thing that did bother me about the local process as it was reported. This negotiation was done in the time period between the bid opening meeting and the meeting where the commissioners actually selected who the public defenders would be. That negotiation was done with two of the three firms that had placed the bids. Why weren't all three given the chance to submit new pricing? Had the third firm already been ruled out?

Am I wrong or are only the commissioners supposed to make that decision in a public meeting?